SAKHAWAT HUSAIN Vs. RAJJAB

JUDGEMENT

(1.) This is a defendant's application in revision against an order of the Judge, Small Cause Court, Agra, rejecting his application for setting aside an ex parte decree.

(2.) The plaintiff opposite party sued the applicant for recovery of Rs. 149 as costs of a shed and Rs. 122 as damages, that is, for recovery of Rs. 271 in all. The Court decreed the suit ex parte on 30-10-1946. When the decree was prepared, it only showed the amount decreed as Rs. 149 and a sum of Rs. 34-13-6 as costs. The decree-writer forgot to mention the sum of Rs. 122 which was claimed as damages and which was also decreed. On 13-1-1947, the defendant applicant made two applications to the Court, below. In the first application he prayed that as he intended to file an application for setting aside the ex parte decree passed against him on 30-10-1946, and as he had no cash he may be permitted to furnish a personal security bond of himself (shakshi zamanat khud). The second application made by him was for setting aside the ex parte decree. Along with those applications, he also filed a security bond which purported to bind himself personally to pay a sum of 200 and also hypothecating certain immovable properties, but the bond was not registered. On the same date the Court ordered on the application for furnishing a personal security bond, "permitted." The security bond was then verified before the Court and apparently it was accepted by the Court as sufficient and the application for setting aside the ex parte decree was registered and notice was directed to be issued to the opposite party.

(3.) The application came up for hearing on 8-2-1947. It would be noticed that this date was within 30 days of the date of the knowledge alleged by the applicant. The plaintiff opposite party got the case adjourned without disclosing his defense. The case ultimately came up for hearing on 29-3-1947 and on this date the plaintiff opposite party pleaded that the security bond filed on 13-1-1947 was not a security bond at all because it was not registered and further that, in any case, it was not for the whole of the amount decreed by the judgment and, therefore, was insufficient. One more objection was raised, namely, that application for permission to file a security bond in lieu of cash was not made prior to the application for setting aside the ex parte decree and that, in this view, also the application was not maintainable by reason of the provisions of Section 17, Provincial Small Cause Courts Act. The learned Judge held against the plaintiff opposite party on the last plea, namely, that the application for seeking the direction of the Court to enable the plaintiff to furnish a, personal security bond was not made prior to the application for setting aside the ex parte decree. This question has not been agitated before us in this revision. The Court, however, held that since the bond purported to hypothecate certain immovable property and was not registered, it was no security bond at all, and since no security was furnished at the time of making the application for setting aside the ex parte decree, there was no proper application before the Court. In this view of the matter, it dismissed the application of the defendant applicant. The defendant applicant has now come up in revision to this Court against this order.